R v Steven James McKenna [2015] NSWDC 250

District Court New South Wales

Medium Neutral Citation: R v Steven James McKenna [2015] NSWDC 250 Hearing dates: 4 September 2015 Decision date: 10 September 2015 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Effective term of imprisonment of 5 years with a non parole period of 3 years 9 months. Catchwords: Child abuse offences- possess child abuse material - use carriage service to groom - use carriage service to procure - cause carriage service to transmit child pornography - effect on victim of even Category 1 material - aggregate sentences - Desirability of Commonwealth offences being subject to such orders. Commonwealth Parliament urged to make appropriate amendments. Legislation Cited: Crimes Act (NSW) 1900, s.91 H(2); Commonwealth Criminal Code, ss. 474.27(1), 474.26 (1), and 474.19. Cases Cited: R v Porte [2015] NSWCCA 174. Texts Cited: Royal Commission into Institutional Responses to Child Sexual Abuse Category: Sentence Parties: Regina (Crown) Steven James McKenna (Offender) Representation: Mr Grodzicki (Commonwealth Director of Public Prosecutions)

Mr C. Simpson of Counsel File Number(s): 2014/15386 Publication restriction: The names of the 2 victims or any other information that might identify them.

Judgment 1. In these remarks I shall be referring to two young women. Because of their ages at the time of the offences, and because the Court is open to the public, I shall not use their real names. I do, however, continue the non-publication order I earlier made as to their real names or any other information that might otherwise identify them. 2. It follows from that order that no access may be had to any court exhibit by any third party without a specific order by me. 3. Steven James McKenna appears for sentence in relation to the following five offences. 4. First, one offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act New South Wales. The maximum penalty for that offence is ten years imprisonment. There is no standard non-parole period. 5. Secondly, one offence of using a carriage service to groom a person under sixteen years, contrary to s 474.27(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is twelve years imprisonment. 6. Thirdly, one offence of using a carriage service to procure a person under sixteen years for sexual activity, contrary to s 474.26(1) of the Commonwealth Criminal Code. The maximum penalty is fifteen years imprisonment. 7. Finally, two offences of using a carriage service to cause child pornography to be transmitted to self, contrary to s 474.19 (1) (a) (ii) of the Commonwealth Criminal Code. The maximum penalty for these offences is 15 years imprisonment. 8. The facts surrounding the offences are contained in an agreed statement of facts and slightly re-cast by me are as follows. 9. As at October 2013, Mr McKenna was aged 27 years and Jessica was aged 14 years. He lived in Queanbeyan and she in Bathurst. 10. At around that time they 'met' on a 'teen dating' website. Each was aware of the other's age. Their on-line communications developed to the point where they exchanged sexually explicit material of each other to each other. This material included, but was not limited to, each person masturbating himself or herself. As I would understand it, much of this material involving Jessica was initially received on Mr McKenna's mobile phone and then transferred to one of the laptops I shall later refer to. 11. Ultimately they agreed to meet in person on 16 January 2014, at a park in Bathurst, where they were to engage in sexual intercourse. 12. However, before that day arrived, and specifically on 10 January 2014, Jessica's parents became aware of this 'relationship' and contacted the police who took possession of Jessica's mobile phone and tablet device. 13. Using those instruments, the police assumed Jessica's identity and continued having communications with Mr McKenna, which included confirming the rendezvous on 16 January 2014. 14. Accordingly, when Mr McKenna went to the Bathurst park on that date, he was arrested. He has been in custody continuously since that time, solely referable to these present matters. 15. The above facts give rise to the offence of using a carriage service to procure a person under 16 years for sexual activity and one of the offences of cause child pornography to be transmitted to self. 16. In terms of objective seriousness for offences of this type, each offence hovers somewhere midway between the middle and the bottom of that objective range. 17. When the police arrested Mr McKenna they took possession, and then examined the contents of, his mobile phone. On it they found a file containing about 100 pictures of a naked female who appeared to be under 16 years old. These pictures were of Maree. Maree lived in Blacktown. Further investigation revealed that as at 2014, Maree was 16 years old but that she and Mr McKenna had been exchanging sexually explicit material since Maree was 15 years old. 18. On two occasions Mr McKenna and Maree both went to a pre-arranged meeting spot in Blacktown but, although they could see each other at that spot, they did not speak face to face - rather they spoke via their mobile phones. The offender on each occasion left a small gift for Maree. 19. The mobile phone communications between Maree and Mr McKenna ceased in about mid September 2014 after Mr McKenna's then fiancée found some relevant phone records. However, Mr McKenna continued to communicate with Maree and exchanged sexually explicit images with her up to his arrest, by which time Maree was 17 years old. Again, as I understand it, much of the material from Maree was initially received on Mr McKenna's mobile phone, and then transferred to one of his laptops. 20. Subject to some additional material to which I shall soon refer, these facts give rise to the offence of using a carriage service to groom a person under 16 and the second offence of using a carriage service to cause child pornography material to be transmitted to self. 21. After Mr McKenna was arrested, the police executed a search warrant at his home in Queanbeyan. They seized a number of laptops and other items. The contents of the laptops, like Mr McKenna's mobile phone, were subsequently examined by the police. 22. Amongst other things, one of the laptops contained a folder containing further sexually explicit images of Maree. 23. Mr McKenna would seem to have been extremely manipulative, if not cruel, in relation to this young person. Disturbingly the laptop contained images of Maree self harming by cutting her wrists - to which image Mr McKenna replied: "I hope you do cut it will serve you right u dumb bitch u know it's not worth it u will only whinge more… btw don't be a pussy and cut deeper there only scratches before." 1. Although Maree was older than Jessica, and the sexually explicit photos involving Maree are not described in as much detail as that involving Jessica, it is this level of apparent control and associated (if indirect) violence which elevates the assessment of objective seriousness of the two offences involving Maree also to a mid-way point between the mid range and the bottom of the range of objective seriousness for offences of that kind. 2. In addition to that folder relating to Maree, the police found on the laptops and the mobile phone a large number of images of child pornography in addition to the images of Jessica and Maree. 3. Before referring in slightly more detail to that material, the following broader observations should be made. 4. Child pornography is currently classified into various categories according to the Child Exploitation Tracking System. 5. Category 1 of that scale shows depictions of children engaging in no overt sexual activity, but does show surreptitious images of children in underwear, naked or engaging in suggestive posing. 6. In relation to category 1, I note that recently the Court of Criminal Appeal in R v Porte [2015] NSWCCA 174, at para 77 said: "…It should not be assumed that Category 1 is mild in content. Despite being the lowest classification level, Category 1 material itself is capable of possessing significant gravity." 1. Moreover, the following observations by McClellan JA, in the opening hearing of the Royal Commission into institutional responses to child sexual abuse should be noted: "What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in lifelong difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature I have no doubt that it is not well understood by the general community. In my world as a Judge I have been called upon to review many of the sentences imposed upon people convicted of sexual abuse of children, but I readily acknowledge that until I began my work with the Commission, I did not adequately appreciate the devastating and long lasting effect which sexual abuse however inflicted can have on an individual's life." 1. Category 2 is non penetrative sexual activity between children or solo masturbation by a child. 2. Category 3 is non penetrative sexual activity between children and adults, including mutual masturbation and other non penetrative sexual activity. 3. Category 4 involves penetrative sexual activity between children or between adults and children. It includes digital and/or penile/vaginal penetration as well as fellatio and cunnilingus. 4. Category 5 involves sadism, bestiality, and/or humiliation, such as urination, defecation or bondage. 5. Excluding for the moment the child abuse material concerning Jessica and Maree, the predominant age of the children depicted in the child pornographic files retained on the offender's laptops and mobile phone was between three to 12 years of age. There were between 171 to 253 images or videos in category 1, 87 to 131 in category 2, 22 to 32 in category 3, 129 to 194 in category 4, and, 12 to 18 in category 5. 6. In relation to Jessica and Maree, there were between 650 to 900 images in category 1, 182 to 225 images and videos in category 2, and 90 to 120 images in category 4. 7. During the course of the sentence hearing, and in accordance with the guidance given by the Court of Criminal Appeal, I viewed a representative sample of that material, but not any image of Jess or Maree. That material was then placed in a sealed envelope marked 'Not to be opened except by an order of a Judge'. The envelope was then stored in the safe maintained by the Sheriff. At the conclusion of these remarks I direct that that envelope be returned to the Director of Public Prosecutions on his undertaking that it will be produced to any other Court that may consider these matters. 8. It may perhaps be instructive to refer to one example of each category provided in that representative sample. 9. One of the category 1 videos depicts a girl aged between nine and 11 years lying on her back on a bed with no clothes on from the waist down. The video then focuses on close-ups of girl's vagina, before shifting back and forth between the face of the child and close-ups of her vagina. 10. One of the category 2 videos depicts a girl aged between eight to 10 years fully naked, masturbating her nipples, then using her fingers to digitally penetrate her vagina. 11. One of the category 3 videos depicts a female child older than five years kneeling next to an adult male with an erect penis. The adult male masturbates his penis using his hand until he ejaculates over the face of the child. 12. One of the category 4 videos depicts a girl about 10 years old lying on a bed. An adult male is standing above her with his penis about 10 centimetres above the child's face. The adult male then places his penis in the child's mouth and ejaculates into her mouth. The child then wipes her mouth with his hand. 13. One of the category 5 videos depicts a child between four and six years old lying on her back on a bed. There is another girl of a similar age sitting next to her. One adult is inserting a sex "toy" into the vagina of the first child. Another adult is depicted using a still camera to take close-up photographs of the object being inserted into the vagina of the child. The face of the first child clearly depicts her being in pain whilst the object is being inserted into her vagina by the adult. 14. I do not consider it necessary to refer with any further particularity to the details of that degraded and degrading material. 15. These facts constitute the possess child abuse material. In terms of objective seriousness for offences of that type, it is slightly below the middle of the range. 16. Jessica has provided the Court with a victim impact statement. It was read to the Court by her father. The statement discloses that Jessica now suffers from low self esteem, suicidal thoughts (with one attempted suicide), depression and a sense of loss, similar to grief. She suffers both in her social life and in her studies at school, and she is undergoing counselling. It is clear that the criminal offending by Mr McKenna has had a serious impact on that young lady. 17. There is no victim impact statement from Maree. The fact, however, that during the course of the offending conduct she attempted self harm by cutting her wrist is suggestive (to say the least) that she similarly has been serious affected by the criminal conduct of the offender. 18. Mr McKenna is now 29 years old. He has no prior convictions of any kind. 19. He had a stable upbringing, notwithstanding that his parents separated when he was either 10 or 12 years old. 20. His first and only relationship, the one with his former fiancée, began when each of them was 13 years old. Their relationship ended shortly after Mr McKenna's arrest. 21. Mr McKenna left school when he completed year 12 and he has been in continuous employment since that date. He was a manager in a hardware store at the time of his arrest. His employer has remained supportive of him and he has visited Mr McKenna in gaol. Mr McKenna hopes to live with his mother in Merimbula when he is released from custody. There is no evidence before the Court as to what employment opportunities there will be for him in that town. Common sentencing experience suggests that lack of employment is a relevant factor in an offender's prospects of re-offending. 22. Mr McKenna is physically in good health. However, he suffers from anxiety, a degree of bipolar disorder, dysthymia and severe major depression. 23. In the sentence hearing the following three documents were tendered in evidence: a pre-sentence reported dated 2 June 2015; a pre-sentence assessment prepared by two experienced psychologists attached to the Sex and Violent Offenders Programs conducted by the Department of Corrective Services dated 28 May 2015; and a psychologist's report prepared for the offender dated 24 August 2015. 24. None of the authors of those reports was asked to give supplementary oral evidence. This is unfortunate because the reports (to a very large extent) do not really explain the reasons behind Mr McKenna's offending conduct. 25. The reports all mainly focus on the offences involving Jessica and Maree. To the extent that the reports seek to relate that offending conduct with the "staleness" of the relationship between Mr McKenna and his then fiancée (a relationship which as I have said commenced when they were 13 and was of 14 years duration) I am not persuaded that that is an adequate explanation for his interest in these young teenage girls rather than women closer to his age. And no explanation is advanced as to why he had an interest in child pornography. 26. These issues ought, in my respectful opinion, to have been pursued by either supplementary written reports or by oral evidence. But neither course was pursued either by the Crown or the offender's legal advisors. This material might well have been relevant in assessing Mr McKenna's objective criminality and his prospects for rehabilitation. 27. For a time shortly after Mr McKenna's arrest, there was little remorse or insight by him into his offending behaviour. Although he did not enter the witness box, I am prepared to accept (by reference to the pre-sentence report and the psychologist reports) that, since his arrest, there has been developing remorse and insight - but that process is far from complete. He has indicated a willingness to participate in the Sex Offender Specific Treatment Program whilst in custody. If he undergoes, and successfully completes, that course his prospects for rehabilitation on the material presently available to me are guardedly reasonable. If he does not successfully complete that course, he is at a moderate risk of re-offending. 28. So, in his case, specific deterrence is a significant factor. And, of course, as the Court of Criminal Appeal has made clear, general deterrence for these offences is the paramount consideration. 29. Clearly no sentence other than a period of fulltime imprisonment is appropriate and the contrary was not submitted by Mr Simpson of counsel who appeared for Mr McKenna. 30. Mr McKenna pleaded guilty at an early opportunity, but not at the earliest opportunity. The pleas of guilty were entered at the Bathurst Local Court on 13 April 2015 following plea negotiations. In so pleading, Mr McKenna spared Jessica and Maree from the ordeal of a trial. Moreover, the pleas respectively were of utilitarian value and facilitated the course of justice. There will be a discount in each case of 20 per cent. 31. In relation to the New South Wales offence (although this was the matter of some submissions during the course of the hearing) I have ultimately decided that there are no special circumstances to vary the ratio of the non parole period to the head sentence. This is because to do so would deprive the offender of the opportunity (which he and the community needs) for him to complete in custody the Sex Offenders Specific Treatment Program. 32. I have determined, because of the similarity in the type of offending, that the sentence for possess child abuse material should be totally concurrent with the sentences for the two offences of cause child pornography to be transmitted to self. 33. However, because there were two victims, the two offences of use carriage service to groom and procure should be partially accumulated with each other and the totally concurrent sentences for the other three offences I have just mentioned. This structure gives rise to well known problems which in New South Wales have been addressed by giving Courts the ability to impose aggregate sentences. That ability is not available where Commonwealth offences are involved. I would urge the Commonwealth Parliament to give serious consideration to implementing a sentencing regime of aggregate sentences for Commonwealth offences. 34. Steven James McKenna of one offence of possessing child abuse material, of one offence of using a carriage service to groom a person under 16 years, of one offence of use a carriage service to procure a person under 16 years for sexual activity, and of two offences of use a carriage service to cause child pornography to be transmitted to self, you are convicted. 35. In relation to the possess child abuse offence and the offences of cause child pornography to be transmitted to self, except for the plea of guilty the term of the sentence in each case, would have been three years and six months imprisonment. Allowing for the discount of 20 per cent, the sentence in each case is two years and nine months. I fix a non parole period of two years to date from 16 January 2014 and which will expire on 15 January 2016. I fix a balance of nine months to date from 16 January 2016 and which will expire on 15 October 2016. 36. In relation to the use carriage service to groom offence, except for the plea of guilty, the sentence would have been a term of imprisonment of four years. Allowing for the discount of 20 per cent, the sentence is three years and two months. I fix a non parole period of two years to date from 16 January 2015 and which will expire on 15 January 2017. I fix a balance of one year and two months to date from 16 January 2017 and which will expire on 15 March 2018. 37. In relation to the use carriage service to procure offence, except for the plea of guilty the sentence would also have been a term of imprisonment of four years. Allowing for the discount of 20 per cent the sentence is three years two months. I fix a non parole period of one year 11 months to date from 16 November 2015 and which will expire on 15 October 2017. I fix a balance of one year and three months to date from 16 October 2017 and which will expire on 15 January 2019. 38. There is therefore Mr McKenna an effective sentence of five years imprisonment with a non parole period of three years and nine months. 39. I make an order confiscating the laptop and mobile phone. 40. I make the confiscation order of $65 in accordance with the short minutes of order signed by me and placed with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2015